Being unable to agree with the decision reached by the majority, I respectfully enter my dissent.
The essential facts are that Ernest Loyd was under contract to build a road for the State of Texas, near the town of Caddo. He sublet a part of the work to J. L. Johnson, as an independent contractor. Among Johnson's employees were Keel, the foreman, Boswell, the shovel operator, Burton Rowe, the oiler on the shovel, Clepper, who did some of the dynamiting, and an employee named Adams.
In the usual course of the blasting operations, some of the sticks of dynamite and some of the dynamite caps would fail to explode. Johnson's employees were instructed to pick them up, whenever found, and turn them over to Keel, the foreman.
In the early part of the afternoon of January 31, 1942, Rowe had in his pocket a cap which he had picked up, and had not yet turned over to the foreman. He conceived the idea of playing a prank on the foreman Keel by attaching the cap to the motor of a pickup truck which Keel drove on the job. The cap was attached to the ignition system of the motor. The cap did not explode immediately, but caused a miss in the motor of the truck. Later that afternoon Keel drove the truck into a garage operated by the appellee Herrington, and requested the latter to find the cause of the miss in the motor. It is undisputed that Keel knew nothing about the cap being on the motor. As appellee raised the hood of the truck the cap exploded, injuring appellee's right eye, and causing him to lose the sight of the eye. Appellee had lost the sight of his left eye in a previous accident, so was left totally blind after the accident here involved.
Herrington sued Ernest Loyd, and recovered judgment for $25,531 upon the verdict returned by the jury. Loyd has appealed.
Loyd moved for an instructed verdict, and later for judgment non obstante veredicto, and here asserts, under appropriate points of error, that the evidence shows as a matter of law that Burton Rowe was not acting within the scope of his employment in placing the cap on the motor of the truck, and that the accident resulted solely from a prank played by Rowe.
Appellee's theories of recovery, as set out in the first three counter points in his brief, are as follows: (1) Since the prank failed, it was not the proximate cause of the accident. (2) The accident was caused by the negligence of Johnson and his employees in failing to remove the cap from the truck after the prank had failed. (3) Since the work being done was inherently dangerous, and the dynamite caps were dangerous instrumentalities, Loyd could not avoid liability by reason of the fact that the work had been delegated to an independent contractor.
The cases relied on by appellee to support his contention that Loyd is liable for the failure of Rowe and the other employees to remove the cap from the truck, after the prank had failed are Pittsburgh, C. S. L. Ry. Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 L.R.A. 464,21 Am. St. Rep. 840; Galveston, H. S. A. Ry. Co. v. Currie, 100 Tex. 136,96 S.W. 1073, 10 L.R.A., N.S., 367; Texas Co. v. Blackstock, Tex. Civ. App. 21 S.W.2d 13, writ of error dismissed; and Atex Const. Co. v. Farrow, Tex. Civ. App. 71 S.W.2d 323, writ of error refused. In my opinion, none of the cases cited announces a rule of liability like that proposed by appellee.
Appellee argues that the Shields case supports his contention that Loyd is liable for Rowe's failure to remove the cap from the truck, although not liable for the placing of the cap on the truck in the first place. It is clear from a reading of the Shields opinion that the holding of the Ohio court is based on the sole ground that the master was liable for the servant's acts in playing the prank because the playing of the prank involved a violation of the duty to safeguard the dangerous instrument. Referring to the prank, the court says that "the first step in that direction is a breach of the duty intrusted to him by the master, and his negligence in this regard becomes at once the negligence of the master" *Page 708
[47 Ohio St. 387, 24 N.E. 659, 8 L.R.A. 464, 21 Am. St. Rep. 840]. An examination of the cases in which the Shields doctrine has been repudiated, some of which will be cited in this opinion, shows that the courts have all given this interpretation to the Shields opinion.
The doctrine of the Shields case has often been repudiated. Our own Supreme Court expressly declined to follow it in Galveston, H. S. A. Ry. Co. v. Currie, supra. Appellee undertakes to support his theory by some of the remarks found in the Currie opinion. The Currie opinion refers to the Shields case as a leading case, but then refuses to follow it. The opinion does contain a rather offhand remark suggesting that the Texas court thought that the railway company in the Shields case might have been liable for the negligence of the servant in leaving the torpedoes on the track, although not liable for the negligence of the servant in placing them there in the first place. Such remarks, even if they be construed as contended for by appellee, must be classed as dicta for at least two reasons. First, the Ohio court did not base its holding on the theory suggested in the Currie opinion. Second, the Currie case did not involve a claim that the negligence of the servant occurred after the prank had ended. In the Currie case the injury was suffered while the prank was being played. The Currie opinion, therefore, is authority only for what it actually holds.
The holding, and the only holding, in the Currie case is as shown in the following excerpt from the opinion [100 Tex. 136, 96 S.W. 1077,10 L.R.A., N.S., 367]:
"His (the master's) responsibility is for the management of his business by the servant, and not for injuries done by the servant's independent conduct of his own affairs. In such matters, it may be granted that the exercise of proper care for the safekeeping of the dangerous thing is the duty of the master, and that the omission of that care by the servant is, in law, the omission of the master. But when the servant employs the thing, not in the master's service, but wholly as an instrument of malice or amusement, he takes himself for the time out of the employment."
Appellee appears to realize that the Currie case precludes a recovery because of Rowe's act in placing the cap on the truck, and he attempts to base liability on the fact that Rowe left the cap on the truck after Rowe realized that his prank had failed. The trouble with this contention is that the fact premise upon which it is based is not borne out by the evidence. Rowe testified that he realized his prank had failed when the cap did not explode when the truck was started. But the regrettable and inescapable fact is that his prank did not fail. It succeeded, and with disastrous consequences. It is not material that the cap did not explode at the time and place where Rowe guessed that it would explode. The material and controlling fact is that the cap exploded solely and only because Rowe, in playing a prank not connected with or pertaining to the master's business, attached the cap to the ignition system of the truck. Rowe set the stage for the prank. He left it set. The prank was played. The show did not go off exactly as Rowe planned, but it took place just the same. It had nothing to do with Ernest Loyd's business, and Loyd is not, under any decisions that I have been able to find, chargeable with the consequences of Rowe's prank.
Appellee, and seemingly the majority of the court, are impressed with the thought that Rowe knew that the cap was on the truck, and that he should have removed it. He ought to have removed it. But it is equally true that he ought never to have placed the cap on the truck in the first place. Placing the cap on the truck was a positive, deliberate, intentional act on Rowe's part. Leaving the cap there was at most a careless omission. If the degree of Rowe's culpability is the test, then it is inconsistent to say that Loyd is not liable for the positive, intentional wrong of his servant, but is liable for the careless omission of the servant. If liability is based upon Rowe's knowledge of the fact that the cap was on the truck, the same inconsistency is reached. When Rowe placed the cap on the truck, he of course at once knew that it was there, and expected and intended that it should explode. When the truck drove away, Rowe knew only what he had known all along, that the cap was on the truck. But, to accept appellee's theory of the facts, Rowe thought that the cap would not then explode. Appellee is in this odd dilemma. In order to arrive at the conclusion that the prank had failed, he must say that Rowe knew that his prank had failed and that the cap was not going to explode, yet he must still say that Rowe could have reasonably foreseen that it would explode. It is odd to argue that Loyd was free from liability while Rowe expected and intended that the *Page 709 cap would explode, and yet became liable when Rowe began to think that the cap was not going to explode.
In this same connection, it is to be remembered that the rule imposing liability upon the master for failure to safeguard a dangerous instrument arises out of the fact that the instrument is inherently dangerous. If it is not safeguarded, it may fall into the hands of some third person who may be hurt by reason of the dangerous quality of the instrument. But in the present case the cap did not explode because of its inherently dangerous character; it exploded because Rowe attached it to an electrical device which he intended should and which did cause it to explode. This cap would never have exploded in appellee's garage if Rowe had not, in order to play his prank, attached it to the ignition of the truck. As is said in International G. N. Railway Co. v. Cooper,88 Tex. 607, 32 S.W. 517:
"The dangerous character of the machinery does not affect the question in this case, because the injury did not result from the dangers connected with the operation of such machinery."
The Currie opinion quotes the above excerpt, and says:
"The distinction is not technical merely but is made necessary by the reason upon which the rule * * * rests."
The other two cases cited by appellee are not in point. Texas Co. v. Blackstock, Tex. Civ. App. 21 S.W.2d 13, writ of error dismissed, involves principles of law not applicable here. A truck driver, contrary to his instructions, invited a child to ride on the truck. When the child alighted from the truck, the driver negligently permitted it to walk across the road in the path of another truck. The decision is based on the proposition that the child was in at least as good a position as would have been a trespasser on the truck, and that the driver owed a duty of exercising ordinary care not to remove the child from the truck in such manner as would be dangerous to the child. Atex Const. Co. v. Farrow, Tex. Civ. App. 71 S.W.2d 323, writ of error refused, does not involve questions pertaining to scope of employment. It cites the Shields case, but only for the proposition that the user of a dangerous instrumentality must use due care to safeguard it.
The following are cases which appear to me to be against appellee's contentions:
In Goupiel v. Grand Trunk Ry. Co., 96 Vt. 191, 118 A. 586, 587, 30 A.L.R. 690, the fireman and engineer on a locomotive placed a torpedo on the track, and caused the locomotive to run over it, in order to scare another. The Railway Company was held not liable. In the opinion it is said:
"This defendant was not an insurer against accidents occasioned by the unwarranted use of these explosives. It was only liable for the negligence of its servants in keeping or handling them when that negligence consisted of some act or omission within the scope of the servant's employment. It is not enough that such act or omission occurred within the working hours of the servant, nor that he was at the time on duty. If the act or omission complained of was done or omitted to carry out some direction of the master, express or implied, in the furtherance of the work the servant was employed to do, the master is chargeable for it; if it is done or left undone to effect some purpose of the servant alone, the master is not so chargeable."
The court refers to the Shields case, and expressly repudiates its holding.
In Obertoni v. Boston M. Railroad, 186 Mass. 481, 71 N.E. 980,67 L.R.A. 422, an eight year old boy found a torpedo at the defendant's grade crossing, took it home, cracked it with a rock, and was hurt. There was testimony that a brakeman threw the torpedo to the flagman at the crossing, that the flagman threw it back to the brakeman, that the brakeman did not catch it, that it fell to the ground, and that after the train passed the flagman went back to his covered station without picking up the torpedo. The court said:
"But we are of opinion that, if the torpedo came to and was left on the planking in the way testified to by Paris, the defendant is not liable, and for the reason that the jury were not warranted in finding that the brakeman and flagman, in throwing the torpedo back and forth, and leaving it on the crossing, were acting in the course of their employment."
The court cited the Shields case, but expressly refused to follow it. It is to be noted that the Massachusetts court considered not only the act of throwing the torpedo, but the act of leaving it on the crossing.
In Sullivan v. Louisville N. R. Co., 115 Ky. 447, 74 S.W. 171,103 Am. St. Rep. 330, the foreman of a switching crew found a torpedo among some rubbish in a tool box on the switch engine. As a prank he placed it on the rail in front of a *Page 710 locomotive. When the locomotive passed over it, the torpedo exploded, and a fragment struck the plaintiff in the leg. The court, denying a recovery, said:
"In argument it is rather admitted that the foreman, in placing the torpedo on the track, was acting outside of his employment, and for that act appellee was not responsible; but, it is argued, for the failure of the foreman to remove the torpedo which he knew was on the track, and almost certain to explode, * * * the master is liable. While the argument is specious, its application is not practical. The act of the foreman in placing and leaving the torpedo on the track was one continuing act, having in view but one object, namely, the explosion of the torpedo, that its noise might frighten the engineer or fireman. It is not possible to segregate this one continuous act so that it could be said that in part of it the servant was acting for himself and in another part * * * for the master. In truth it was conceived, set in motion, and consummated in furtherance alone of the servant's own purpose, entirely disconnected from any duty whatever imposed by his employment."
The court cited the Shields case, and refused to follow it, saying:
"This doctrine, if carried to its full logical result, would mean that any injury done by a servant with the master's property in the servant's care would bind the master. * * * The best-considered and most numerous authorities do not draw the line at whether the servant is using his master's property when inflicting the injury in question, but whether he is then representing the master."
In Johnson v. Chicago, R. I. P. R. Co., 157 Iowa 738, 141 N.W. 430,431, L.R.A. 1916F, 945, plaintiff lived near defendant's right-of-way. She was a friend of a brakeman employed by defendant. While upon a passing train he undertook to deliver to her a personal note from himself. He attached the note to a torpedo as a weight, and tossed it to the ground near plaintiff's home. The note and the torpedo were brought to her by her sister. Later plaintiff was injured by the torpedo, being unaware of its dangerous character. In denying the plaintiff a recovery, the court stated that the controlling question in the case was whether the act complained of was within or without the scope of the brakeman's employment. In the opinion it is said:
"We find no case which has gone to the extent of holding that such an act as this can be deemed as within the scope of the employment of the servant."
The court quotes an excerpt from Cooley on Torts (p. 536):
"`The test of the master's liability is not the motive of the servant, but whether that which he did was something which his employer contemplated, and something which, if he could do it lawfully, he might do in the employer's name.'"
The court cites the Shields case, but declines to follow it.
In American Ry. Express Co. v. Davis, 152 Ark. 258, 238 S.W. 50, 52,1063, the defendant's employee had been furnished a pistol to use in safeguarding property handled by the defendant. The employee in question and another employee named Davis engaged in play having nothing to do with defendant's business. Garrison, the employee who had the pistol, went back to his room to resume work. Davis followed him, and persisted in carrying on the frolic. Garrison testified that he knew that Davis was afraid of pistols, and could be easily frightened with one. So, in order to end the frolic, Garrison turned the cylinder so that he thought the hammer rested on an empty chamber, and pointed it at Davis. The weapon was discharged. Davis was hit, and died of his injury. The opinion points out that plaintiffs rested their case solely upon the theory that defendant had intrusted its employee with an inherently dangerous instrumentality, and was liable for the failure of the employee to safeguard the dangerous instrumentality. The court said:
"In the present case, if it can be said that a pistol is a thing inherently dangerous, the injury to Davis was not inflicted on account of the inherent danger, but because of the negligent act of a servant while using the pistol for his own private purposes."
The court disapproves of the doctrine announced in the Shields case, saying that it is out of harmony with the great weight of authority.
The jury found Loyd, Johnson, and some of Johnson's employees guilty of many acts of negligence. Many of the findings, it seems to me, have no support in the evidence, and most of them do not appear to be relied on by appellee in his brief. They should, however, be mentioned.
The jury found Rowe, Boswell, Keel, Clepper, Johnson and Loyd all guilty of *Page 711 negligently permitting large numbers of unexploded caps to remain on and near the road being built. There is some evidence that unexploded caps were found on and near the road. There is no evidence that any of the persons named left such caps on the road. And it is too plain for argument that permitting large numbers of caps to remain on the road had no causal connection with the accident in question. It was caused by a cap which Rowe had picked up, as he was required to do, and then used for a purpose of his own.
The jury found that Boswell failed to take proper precautions to avoid injury to plaintiff from the dynamite caps, that he negligently failed to remove the cap after the prank failed, and that he abandoned the custody of the cap after the prank failed. Findings of negligence and proximate cause followed. The evidence shows that Boswell participated in a prank attempted to be played by the employee Adams, who placed a cap on the truck a short time before Rowe did. Boswell told him where to attach the cap. When the cap did not explode, Adams removed it. Rowe did not tell Boswell that he was going to put another cap on the truck, but did tell Boswell about it after he had placed it on the truck. It does not seem to me that under these circumstances appellant should be held for the failure of Boswell to undo the prank played by Rowe. Boswell was an active participant in the prank played by Adams, and at least a passive participant in the prank played by Rowe. In Goupiel v. Grand Trunk Ry. Co., supra, the fireman placed a torpedo on the track, while the engineer drove the locomotive forward so as to run over the torpedo. The court says, referring to the engineer:
"He was as much outside the scope of his employment as was the fireman. * * *"
The jury found that Keel, Clepper, Johnson and Loyd failed to take proper precautions to avoid injury to plaintiff from the dynamite caps, and that they failed to keep in a safe place all unexploded caps used on the road. There is not a scintilla of evidence to show that any of the four persons just named had any knowledge whatsoever of the prank played by Rowe until after the accident occurred. It is not shown that either Johnson or Loyd was on the job on the day of the accident. The most pertinent thing that can be said about this portion of the verdict is that the jury obviously was not guided by the evidence in arriving at the answers.
I am of the opinion that the judgment of the trial court should be reversed, and judgment here rendered in favor of appellant. But if the majority be correct in holding that the evidence is sufficient to support the verdict, I am of opinion that the judgment should nevertheless be reversed, and the cause remanded for a new trial.
Under appropriate points of error complaint is made of the admission of testimony concerning the following matters: (1) That sticks of dynamite were found near a public school where children were playing and men were working. (2) That dynamite caps were left overnight in holes in rocks, some thirty or forty days before the accident here involved. (3) That dynamite caps were found on the road some two or three weeks after the accident. (4) That no notice was given to a person who lived near the road prior to blasting on the road in question. (5) That blasts were set off when persons were in a home near the road. (6) That the subcontractor Johnson had placed some dynamite in a certain building, and had moved it on complaint of one J. B. Clardy. It seems clear to me that the evidence complained of had no bearing on the narrow ground of liability asserted here, to-wit, the failure to remove the one dynamite cap placed on Keel's truck by Rowe on the afternoon of January 31st. From the very nature of such evidence it would be calculated to prejudice the jury against the defendant, and the fact that the jury was influenced by something other than the evidence is strongly, if not conclusively, indicated by the fact that many of the answers of the jury to the issues submitted are without any support whatever in the evidence, as has already been pointed out.
Loyd was asked if he did not have fifteen different road contracts with the State Highway Department at the time of this accident. While I would be slow to consider this reversible error if taken alone, yet, when considered in connection with all of the other testimony which had no bearing on the precise issue before the court, and the argument of counsel concerning it, it could only have had the effect of creating a prejudice against appellant, on the ground that he was a person of large means, as contrasted with a blind and poor plaintiff.
Complaint is made of portions of the argument of appellee's counsel to the jury. *Page 712 The portions complained of are too lengthy to be copied here, but, in my opinion, when considered in connection with the inadmissible testimony mentioned above, and with the answers to many issues which have no possible support in the evidence, are such as to require a reversal. The inadmissible testimony, together with the argument, painted to the jury a lurid picture of negligence in the handling of dynamite and dynamite caps which had nothing to do with the precise question upon which liability is claimed in this case, and could only have had, and demonstrably did have, the effect of causing the jury to answer every issue favorably to appellee regardless of the state of the evidence.
This court, in Fort Worth Denver City Ry. Co. v. Walters, Tex. Civ. App. 154 S.W.2d 177, 178, writ of error refused for want of merit, had before it a case in which, it was claimed, the defendant maintained a dangerous situation which caused an automobile wreck. Plaintiff's counsel interrogated a witness concerning the number of wrecked automobiles that he had picked up at this particular place. After the evidence was introduced, plaintiff joined defendant in the request to exclude it. Defendant contended that the error could not be cured, and requested the court to declare a mistrial. The trial court declined to declare a mistrial, but did attempt to withdraw the damaging testimony. In our opinion, we held:
"We believe that this case presents one of those situations where the harm is done and that nothing the trial court could say would eradicate the harmful impression that the evidence made on the average juror's mind.
"This evidence was calculated to prejudice and even inflame the minds of the jurors, by showing that accident after accident had occurred at the identical spot.
"The assignment of error is well taken. Gulf, C. S. F. Ry. Co. v. Levy, 59 Tex. 542, 46 Am.Rep. 269; City of Pampa v. Todd, Tex.Com.App.,59 S.W.2d 114 (Com. of App'ls. opinion approved)."
I have felt obliged to write at considerable length in this opinion, partly because of the unusual nature of the case, partly because of the dicta in the Currie opinion, and partly because the majority opinion does not contain a discussion of some of the cases cited above which seem to me to refute the theory advanced by appellee and adopted by the majority of the court.